Loading...

Jagarnath Jha vs Ugrakant Chaudhary on 9 October, 1980

Patna High Court
Jagarnath Jha vs Ugrakant Chaudhary on 9 October, 1980
Equivalent citations: AIR 1981 Pat 200, 1981 (29) BLJR 520
Author: N P Singh
Bench: N P Singh


JUDGMENT

Nagendra Prasad Singh, J.

1. The plaintiff is the appellant in this second appeal. The suit in question had been filed on behalf of the plaintiff for realisation of Rs. 670/- as principal along with interest from the defendant-respondent.

2. The case of the plaintiff is that the defendant-respondent took a loan of Rs. 498/- from him and executed an usufructuary mortgage bond dated 18-3-1969 mortgaging 4 kathas of land fully described in the schedules of the plaint. The said mortgage bond was to be redeemed on 30th Baisakh 1379 fasli, i.e., June, 1972. The plaintiff also came in possession of the mortgaged property. It is further the case of the plaintiff that the defendant forcibly dispossessed him from the land on 5-7-1972, and in spite of requests the possession has not been delivered to the plaintiff which necessitated filing of the suit for realisation of the amount advanced along with interest.

3. The defendant admitted the taking of the loan from the plaintiff and the execution of the bond on the date alleged in favour of the plaintiff, but he denied that the plaintiff was dispossessed from the mortgaged land by him. He asserted that the plaintiff continued to be in possession of the same and enjoyed the usufructs from the land. According to him, this suit has been filed to avoid the consequence of the provisions of the Bihar Money Lenders Act. 1974 (hereinafter to be referred to as ‘the Act’). The suit in question was filed on 5-6-1975.

4. The trial Court, on a consideration of the materials, dismissed the suit on 15-9-1976 on thy finding that the plaintiff was never dispossessed from the suit land and the story of dispossession as propounded by him was incorrect. It further held that in view of Section 12 of the aforesaid Act, the plaintiff was not entitled for realisation of the amount advanced to the defendant. The appeal filed on behalf of the plaintiff was also dismissed by the learned Subordinate Judge affirming the findings of the trial Court.

5. Learned counsel appearing for the plaintiff-appellant purported to chal-

lenge the findings of the two Courts below that plaintiff was never dispossessed from the mortgaged land as alleged by him. He further submitted that even if that finding is accepted the suit of the plaintiff for realisation of the amount advanced to the defendant could not have been dismissed because the defendant had agreed to pay the amount aad to redeem, the mortgage by 30th Baisakh 1379 fasli, i.e, June 1972, and having not done so, it was open to the plaintiff as mortgagee to file the suit in question.

6. It is true that a mortgagee can file a suit for realisations of the amount advanced to the mortgagor. But, in the instant case, the suit was fifed on 5-6-1975, and before the disposal of the suit, the aforesaid Act came in force. Relevant portion of Section 12 of the aforesaid Act is as follows:–

“Notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of an usufructuary mortgage relating to any agricultural land whether executed before or after the commencement of this Act, shall be deemed to have been, fully satisfied and mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of the execution of the mortgage bond in respect of such laud and the mortgagor shall he entitled to recover possession of the mortgaged land in the manner prescribed under the rules.”

On a plain reading of Section 12 the principal amount and all dues in respect of usufructuary mortgage relating to any agricultural land whether executed before or after the commencement of the said Act. shall be deemed to have been fully satisfied and the mortgage shall be deemed to, have been wholly redeemed on expiry of the period of seven years from the date of the execution of the mortgage bond in respect of such, land and the mortgagor shall be entitled to recover possession of the mortgaged land. In other words, if the mortgagee has continued in possession for a period of seven years in respect of the mortgaged land, in view of Section 12 of the Act. it will be deemed that the principal amount as well as interest for the same has been fully satisfied. Now in the instant case

the mortgage bond was executed on 18-3-1969, the period seven years shall be over on or about 18-3-1976. In view ot the concurrent findings of the two Courts below that the plaintiff has continued in possession of the mortgaged land during this period. Section 12 of the Act shall have full play and it will be deemed that the amount advanced to the defendant along with interest has been fully satisfied and the mortgage has been redeemed. IN such a situation, now the question is as to whether the trial Court could have decreed the suit on 15-9-l976 directing the defendant to pay back the principal amount along with interest. In my view, the answer to this question is in negative. It is well settled that no Court can mass an order which is against the mandate of a statute.

7. It was them submitted on behalf of the plaintiff-appellant that on the date when the suit was filed, the period of seven years was not over so as to extinguish the mortgage, and Court had to decree to dismiss the suit taking into consideration only the situations as they existed on the date of the institution of the suit. It is true that the law in general is that court has to decide the rights and liabilities of the parties as they existed on the date of the institution of the suit, but it is equally well established that in appropriate cases courts cannot shut their eyes to the subsequent events while passing an order or decree. In the case of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri (AIR 1941 FC 5) it was observed : (at p. 13)
“………the Court of appeal is entitled
to take into account even facts and events which have come into existence after the decree appealed against.”

Again, in the case of Shikharchand Jain v. Digamber Jain Praband Karini Sabha (AIR T974 SC 1178) it was pointed out as follows:– (at p. 1182)
“Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a court including, a court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of sub-

sequent change of circumstances become
inappropriate; or (2) where it is necessary to take notice of the charged circumstances in order to shorten the
litigation, or (3) to do complete justice between the parties.”

A Bench of this Court also in the case of Smt. Chandrawati Devi v. Rameshwar Kaviraj (AIR 1968 Pat 422) observed that courts are required to determine the rights of the parties with reference to the date of the institution of the suit, but it has to take note of events which
have happened since the institution of the suit and pass the decree according to the circumstances prevailing at the time the decree is to being passed.

8. Now, if the suit of the plaintiff is decreed merely because on the date of the institution of the suit the period of seven years was not over, it will lead to an anomalous position; while the court will hold the plaintiff entitled for realisation of the amount advanced fey him to the defendant. Section 12 of the Act says that sit will be deemed to have been satisfied after the expiry of the period of seven years. In any view, the courts below were justified in dismissing the suit of the plaintiff taking note of the subsequent events.

9. It was lastly submitted that in the special facts and circumstances of the instant case the plaintiff was entitled for a decree on the admission of the defendant himself. It appears that the defendant was being examined as a witness on 11-9-1976 as D. W. 3 and during cross-examination he admitted that he wanted to pay back the loan which he had taken from the plaintiff; however, be was not prepared to pay the interest. He further stated that at he had dispossessed the plaintiff then
be was prepared to pay back principal as well as interest; on the other hand, if he has not dispossessed the plaintiff then he was prepared only to pay the principal. On the basis of the aforesaid statement it has been urged that the courts should have decreed the suit at least for the principal amount in view of Order 12, Rule 6 of the Code of Civil Procedure. The said rule as it
Stood prior to the amendment of the Code of Civil Procedure. 1976 which will be applicable to the present suit was as follows :–

“Any party may at any stage of a suit, where admissions of fact have

been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court may upon such application make such order, or give such judgment, as the Court may think just”

Even after 1976 amendment, the aforesaid Rule has been retained substantially, tout it enables the court to pass any order or give any judgment on
such admission even of its own motion. This change, perhaps, was made because in some of the decisions with reference to the old Rule it has been held that such orders can be passed only on application being filed see Abinash Chandra Ray v. Suriya Narayan Shaha, ILR (1948) 1 Cal 141. It is an admitted position that at no stage any such application was filed on behalf of the plaintiff after the aforesaid admission was made. Exercise of power under Rule 6 is discretionary and has to be exercised after taking into consideration all facts and circumstances of the case. Reference in this connection may be made to a judgment of Mookerjee and G. Rankin, JJ. (AIR 1924 Cal 190) where it was pointed out that exercise of the power under the aforesaid Rule was discretionary. On 11-9-1976 even if the defendant had stated that he was prepared to pay the principal, the court could not have passed a decree on that statement when Section 12 of the Act was in force and had absolved the defendant from the liability to pay the amount which had been advanced to him.

10. In the result, the appeal fails and is, accordingly, dismissed. In the circumstances of the case, however, there will be no order as to costs.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information